Morris v. Davis

• Decision Date: 20 December 1933
• Parties: Clara B. and Bert E. Morris v. Brooks E. Davis, Lina H. Davis, Ira B. Burns, Trustee, and E. B. Sweitz, Appellants
• Court: Missouri Supreme Court

66 S.W.2d 883

334 Mo. 411

Clara B. and Bert E. Morris v. Brooks E. Davis, Lina H. Davis, Ira B. Burns, Trustee, and E. B. Sweitz, Appellants

Supreme Court of Missouri

December 20, 1933

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Affirmed.

H S. Julian for appellants.

(1) The plaintiffs alleged fraud, and that appellant Sweitz was in confederation with the other defendants to defraud, cheat and trick the plaintiffs out of their property. No fraud was proved. No knowledge on the part of Sweitz of any kind as to the former transactions between Davis and plaintiffs was shown. Fraud like any other allegation must be proved. It is never presumed. Ames v. Gilmore, 59 Mo. 537; Funkhouser v. Lay, 78 Mo. 458; Martin v Fox, 40 Mo.App. 664; Hardwick v. Hamilton, 121 Mo. 465; Warren v. Ritchie, 128 Mo. 311; Lumber Co. v. Crommer, 202 Mo. 521; Troll v. St. Louis, 257 Mo. 626. (2) The petition should have been dismissed on the ground that there was defect of parties, because the holders of the notes secured by the deed of trust were not made parties. Section 1226, Revised Statutes 1919; Jolly v. Lamar, 242 Mo. 44; Stitt v. Stitt, 205 Mo. 155; Decker v. Caskey, 1 N.J.Eq. 427; Camp v. Boyd, 229 U.S. 530. (3) The granting of the injunction against Sweitz from prosecuting his unlawful detainer case was void and should have been dissolved, because of lack of notice to Sweitz. No service had been had upon him, and no notice was given to him. Section 1953, Revised Statutes 1919. (4) The granting of the injunction against prosecuting an unlawful detainer case is illegal, and a power that cannot be exercised by a court of equity. 9 Cyc. of Pleading and Practice, 82, sec. 19; High on Injunctions, secs. 89, 98, 325; Beach on Injunctions, secs. 592, 597, 717; Mo. Pac. Railroad Co. v. Cannon, 49 F. 517; 26 C. J. 871, sec. 156. (5) The trial court erred in not compelling plaintiffs either to elect upon which cause of action they would go to trial, whether on the action to quiet title, or their action for unlawful detainer, and should have sustained defendant Sweitz's motion to refuse to receive testimony in the case, because the misjoinder of actions embraced in one count. Sec. 1221, R. S. 1919; Crystal v. Craig, 80 Mo. 367; Miller v. Harpster, 273 Mo. 605. (6) The objection to the misjoinder of the two causes of action was properly taken by defendant Sweitz, in pursuance to Section 1230, Revised Statutes 1919, and should have been sustained by the trial court. Bradshaw v. Sherwood, 42 Mo. 179; Smith v. Sedalia, 244 Mo. 107; Anderson v. McPike, 41 Mo.App. 328; Baxter v. Transit Co., 198 Mo. 1. (7) Sweitz was a bona fide purchaser for valuable consideration, and took a warranty deed from grantor who had good title to the property on the record, and although his grantor may have gotten his title by fraud, unless it was proved that Sweitz had knowledge of that fraud, and was a party to it, it cannot be imputed to him. Craig v. Zimmerman, 87 Mo. 478; Reynolds v. Faust, 179 Mo. 27; Bonnie v. Taylor, 90 Mo. 63; Evans v. David, 98 Mo. 405; Hendricks v. Calloway, 211 Mo. 560; Davidson v. Dockery, 179 Mo. 697; Sec. 2277, R. S. 1919.

Louis N. Goessy, John W. Kachelhofer and Calvin, Vandeventer & Kimbrell for respondents.

(1) The unauthorized and untimely delivery of the respondents' warranty deed by Mansfield Brothers Mortgage Company passed no title, either legal or equitable to the respondents' realty, therein described, to Brooks E. and Lina H. Davis, or to E. B. Sweitz, their immediate grantee; and, therefore, the respondents were entitled to the equitable relief which they sought and obtained. Bales v. Roberts, 189 Mo. 169, 87 S.W. 914; Seibel v. Higham, 216 Mo. 121, 115 S.W. 987; Delaney v. Light, 263 S.W. 813; Clifford Cigar Co. v. Mahoning Inv. Co., 186 S.W. 1123. (2) So far as the record discloses, Brooks E. and Lina H. Davis wholly failed to carry out the terms and provisions of the written contract into which they and the respondents entered; and the respondents, therefore, under the terms thereof, had the legal right to, and they did, elect to declare the same null and void. Barthel v. Engle, 261 Mo. 307, 168 S.W. 1154. (3) The respondents not only had the equitable right to seek a cancellation of the warranty deeds and the deed of trust in question, but, also, had the equitable right to enjoin the prosecution of the action for unlawful detainer, which the appellant, E. B. Sweitz, instituted against them for the possession of their realty. Cases cited under Point 1 hereof; Sec. 1519, R. S. 1929; Gardner v. Terry, 99 Mo. 523, 12 S.W. 888; Payne v. Association, 126 Mo.App. 583, 105 S.W. 15; Ridgley v. Stillwell, 28 Mo. 400; Finney v. Cist, 34 Mo. 303; Blount v. Connolly, 110 Mo.App. 603, 85 S.W. 605; State ex rel. Jackly v. Taylor, 210 Mo.App. 195, 242 S.W. 997; Medicus v. Altman, 199 Mo.App. 466, 203 S.W. 637.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Defendants Ira B. Burns, Trustee, and E. B. Sweitz, come to this court upon appeal from a decree of the Circuit Court of Jackson County against all defendants, quieting the title of respondents to certain real property in Kansas City. Defendants Brooks E. Davis and Lina H. Davis were served by order of publication. They did not plead and the decree went by default against them. The decree set aside a warranty deed to the Kansas City property in suit executed by respondents Morris to defendants Davis in exchange for certain real estate in Jackson County near Independence. It also annulled a warranty deed to the same Kansas City property executed by defendants Davis to appellant Sweitz, and a part purchase money deed of trust executed by Sweitz to appellant Burns, as trustee for defendants Davis, and quieted title to the property in respondents Morris.

I. Respondents' second amended petition, upon which issue was joined, alleged that respondents Morris and defendants Davis by a contract in writing dated August 17, 1929, agreed to an exchange of a five-acre tract in Jackson County, near Independence, Missouri, owned by defendants, Davis, subject to a balance of $ 5,000 due upon a deed of trust, for Lot 9, Hyde's First Addition to Kansas City, Missouri, owned by respondents Morris, free of encumbrances. The exchange contract, as pleaded and proved further provided, among other things, that within ten days from its date the parties would deliver at the office of Mansfield Brothers Mortgage Company, complete abstract of title to their respective properties including certificates in full as to taxes, judgment or other liens. Each party was to have five days from date of delivery for examination of abstracts, and for report to the other party of defects therein, if any, in writing at the office of Mansfield Brothers Mortgage Company. If upon examination it was found that the title to any of the properties being exchanged was defective, the party who was to convey or have conveyed said property, agreed to have the defects rectified within a reasonable time, which was not to exceed thirty days from date of the written notice of defects. In case such defects were not rectified within time of limit, the contract was to be null and void at the option of the party not in default, and abstracts were to be returned to their respective owners.

The exchange contract further provided that, within ten days from its date, the parties thereto were to "execute and deposit with Mansfield Brothers Mortgage Company the deed to their respective properties to be held in trust by them until the completion of the contract, and the said Mansfield Brothers Mortgage Company is authorized to deliver said deed on completion of this contract." The exchange contract further provided that the place to make tender of the papers in the transaction was to be the office of Mansfield Brothers Mortgage Company, Kansas City, Missouri, and legal tender made at that office was to be binding on either party.

Respondents further alleged that the parties delivered their respective abstracts to each other and that, on September 4, 1929, respondents Morris, in writing, pointed out to defendants Davis certain defects in the title to the Jackson County five-acre tract. The first objection was the uncertainty of description of the land affected by a recorded exchange contract executed in 1925 by a former owner of a ten-acre tract of which the five-acre tract of defendants Davis was a part. The second objection was the requirement of a showing that a former grantee named Sievers and a succeeding grantor named Sevier were one and the same person. A demand also was made for a statement in writing showing that the balance due on the deed of trust on the five-acre tract was only $ 5,000, as was recited in the contract. Other objections raised need not be mentioned. The second amended petition further alleged that respondents, upon pointing out the objections stated on September 4, 1929, were assured that the defects would be cured within thirty days prescribed by the exchange contract, and at the same time they were induced to execute a warranty deed to their Kansas City property and to deliver it in trust or escrow under the exchange contract and under a further written agreement signed by Mansfield Brothers Mortgage Company by Frank B. Mansfield, its president. By this subsequent agreement the Mansfield Company acknowledged the receipt of respondents' warranty deed in escrow to fulfill the requirements of the exchange contract of August 17, 1929. The Mansfield Company also agreed that it would not deliver respondents' warranty deed to Mr. and Mrs. Davis, the grantees, until the title to the property set out in the exchange contract as belonging to the defendants Davis was perfected.

The petition...